Citation Nr: 0101355
Decision Date: 01/18/01 Archive Date: 01/24/01
DOCKET NO. 99 - 01 816 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for a
cervical spine disability, including degenerative arthritis
and degenerative disc disease.
Entitlement to specially adapted housing or a special home
adaptation grant.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARINGS ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Frank L. Christian, Counsel
INTRODUCTION
The veteran served on active duty from January 1956 to
September 1959, and from November 1960 to service retirement
in June 1977, including service in the Republic of Vietnam
from May 1969 to April 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of November 1998 and
November 1999 from the Department of Veterans Affairs (VA)
Regional Office (RO) in Louisville, Kentucky. The record
shows that the rating decision of November 1998 denied
entitlement to specially adapted housing or a special home
adaptation grant, and that the rating decision of November
1999 determined that new and material evidence had not been
submitted to reopen a claim for service connection for a
disability of the cervical spine, to include degenerative
arthritis and degenerative disc disease.
The appeal for specially adapted housing or a special home
adaptation grant is addressed in the Remand portion of this
decision.
FINDINGS OF FACT
1. A rating decision of December 1985 denied service
connection for a cervical spine disability, to include
arthritis; the veteran was notified of that determination,
but failed to initiate an appeal and that decision became
final.
2. In October 1990, the veteran again sought service
connection for a cervical spine disability, to include
degenerative arthritis and degenerative disc disease,
submitting additional medical evidence.
3. A rating decision of November 1991 determined that new
and material evidence had not been submitted to reopen the
claim for service connection for a cervical spine disability,
to include degenerative arthritis and degenerative disc
disease; the veteran was notified of that adverse
determination, but failed to initiate an appeal and that
decision became final.
4. In August 1999, the veteran undertook to reopen his claim
for service connection for a cervical spine disability, to
include degenerative arthritis and degenerative disc disease,
by submitting additional medical evidence and testimony.
5. The service medical records show that the veteran was
diagnosed with torticollis during active service in December
1966 and January 1967, and placed in cervical traction in
April 1971; X-rays of the cervical spine in June 1976
revealed joint space narrowing at C5-C6, with neural
foraminal narrowing; an osteoarthritis flare-up was diagnosed
in August 1976; and he was diagnosed with cervical arthritis
on orthopedic consultation at the time of his service
retirement examination.
6. The additional evidence submitted to reopen the veteran's
claim for service connection for a cervical spine disability,
to include degenerative arthritis and degenerative disc
disease, includes testimony and medical evidence establishing
continuity of treatment for the veteran's cervical arthritis
and radiographic findings of joint space narrowing, C5-C6,
with neural foraminal narrowing, initially demonstrated and
diagnosed during active service.
7. The additional evidence submitted to reopen the claim for
service connection for a cervical spine disability, to
include arthritis and degenerative disc disease, includes
evidence which bears directly and substantially upon the
specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim.
CONCLUSIONS OF LAW
1. New and material evidence having been submitted, the
claim for service connection for a cervical spine disability,
including degenerative arthritis and degenerative disc
disease, is reopened. 38 U.S.C.A. § 5108 (West 1991);
38 C.F.R. § 3.156(a) (2000); .
2. A cervical spine disability, including degenerative
arthritis and degenerative disc disease, was incurred during
active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991);
38 C.F.R. § 3.303, Part 4,
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board finds that the RO has obtained available evidence
from all sources identified by the veteran, that he has been
afforded personal hearings at the RO and before the
undersigned Veterans Law Judge in Washington, DC, and that he
has undergone comprehensive VA orthopedic, neurologic,
radiographic and electrodiagnostic examinations in connection
with his claim. On appellate review, the Board sees no areas
in which further development might be productive.
I. Evidentiary and Procedural History
As noted, the veteran served on active duty from January 1956
to September 1959, and from November 1960 to service
retirement in June 1977.
The veteran's service entrance examination, dated in December
1955, disclosed no abnormalities of the head, neck, or face,
and his spine and musculoskeletal system were normal. A
medical examination in April 1956 disclosed no pertinent
neck, spine or musculoskeletal disabilities. His service
separation and reenlistment examinations in June 1957 showed
that his neck, spine and musculoskeletal system were normal.
His service medical records disclose that in April 1959 he
was hospitalized following an automobile accident and found
to have a laceration of the left wrist, with four lacerated
tendons, and X-ray evidence of a simple fracture of the T2
vertebrae, extending through the posterior elements on the
left, with no nerve or artery involvement. Following
treatment, the admitting diagnosis of a simple fracture of
the T2 vertebrae was changed to laceration wound of the left
wrist, no nerve or artery involvement, with laceration of the
abductor pollicis brevis, the abductor pollicis longus, the
extensor carpi radialis longus, and the extensor carpi
radialis brevis tendons. His injuries were found to be in
the line-of-duty. In May 1959, the veteran complained of
pain at the base of the neck. In July 1959, X-rays showed
haziness at the fracture site indicative of healing. In
August 1959, it was noted that the veteran had discomfort of
the upper thoracic region in the area of the old T2 fracture;
that the T2 fracture had healed with no evidence of
compression, distortion, or loss of vertebral body height,
and the veteran had a full range of motion in the shoulders
and back, with no evidence of weakness or loss of sensation.
He was administratively discharged from service in September
1959 because of a congenital kidney disorder. No
abnormalities of the cervical spine were shown during the
veteran's initial period of active duty or at the time of
service separation in September 1959. On VA examination in
January 1960, no X-rays of the cervical spine were obtained.
The veteran's service reenlistment examination, conducted in
November 1960, disclosed no abnormalities of the head, neck,
or face, and his spine and musculoskeletal system were
normal. Reports of medical examinations for reenlistment in
July 1962 and for Special Forces training in December 1962
disclosed no abnormalities of the head, neck, or face, and
his spine and musculoskeletal system were normal. In
December 1964, the veteran underwent cervical spine X-rays to
evaluate complaints of a sharp pain on turning his head to
the left. In November 1966, he was seen for complaints of
pain of the right neck, with tenderness and right paraspinous
muscle spasm. Following referral to the orthopedic service,
the diagnosis was torticollis. He subsequently was seen for
intermittent muscle spasm of the right neck, with continued
tenderness and right paraspinous muscle spasm. X-rays
revealed no soft tissue abnormalities. He was admitted to
the base hospital for five days in December 1966 with
complaints of inability to move his head of two weeks'
duration. The diagnosis was torticollis, and he was
subsequently treated with physical therapy to improve the
range of motion of his neck. A Narrative Summary in December
1966 cited a 1959 car accident with fracture of the 2nd
thoracic vertebrae. He was found to be unfit for further
duty because of asthma, with chronic bronchitis; and asthma,
allergic, incurred in line-of-duty, but was retained on
active duty. Service medical records dated in January 1967
show that the veteran was again seen for torticollis, and was
referred for consultation.
On service reenlistment examination in April 1971, the
veteran complained of neck pain and was referred for an
orthopedic consultation. The report of orthopedic
consultation noted the veteran's complaints of neck pain,
radiating down the posterolateral aspect of his left arm.
The veteran's history of a T2 fracture in 1959 was cited,
with subsequent treatment for neck spasm. X-ray examination
disclosed a persistent fracture line at the body of T2 on the
left, and a possible cervical rib. The veteran was placed in
cervical traction, and he was given a permanent profile with
a military occupational specialty (mos) change. In October
1972, the veteran's complaints included paravertebral
numbness, and a history of thoracic spine compression
fractures was noted. X-rays of the cervical spine were taken
in October 1973 to evaluate soft tissue pain in the neck.
In June 1976, the veteran was evaluated for complaints of
numbness of the left arm to the shoulder in the T3 and T4
distribution and tenderness in the C5-6 area on the left
side. X-rays of the cervical spine were ordered to rule out
degenerative disease. Those X-rays revealed joint space
narrowing at C5-C6, and neural foraminal narrowing. An entry
in August 1976 showed a clinical assessment of osteoarthritis
(flare-up). In September 1976, the veteran was found to have
point tenderness at the right mid-thoracic back, diagnosed as
musculoskeletal back pain, and he was given injections of
lidocaine and Depo Medrol and advised to use heat and rest.
At the time of his service retirement examination in February
1977, the veteran called attention to his neck injuries in
1959. The examining physician noted that the veteran's
records revealed a fracture of T2 in 1959 with residuals, and
referred him for orthopedic consultation. That report of
consultation cited the veteran's T2 fracture in 1959, with
intermittent numbness in the thumb and index fingers,
bilaterally. The diagnoses included old compression
fracture, T2 (1959), by history symptomatic; and cervical
arthritis.
In a subsequent application for VA disability compensation
benefits (VA Form 21-526), received in November 1977, the
veteran complained of back pain, and claimed benefits for a
back injury. On examination in March 1978, X-rays revealed a
slight compression of the T9 and T10 vertebrae, with mild
associated hypertrophic spurring, probably secondary to old
trauma, and a chest X-ray disclosed compression fractures at
T10 and T11. No X-rays of the cervical spine were obtained.
The diagnoses included old fracture, thoracic spine.
VA outpatient records dated in October 1978 noted symptoms in
the veteran suggestive of a right C6 cervical radiculopathy,
and electromyographic (EMG) testing was recommended. In
November 1978, the veteran complained of pain in the right
side of his neck, pain in the right shoulder and arm, and
numbness, and a history of back and neck injuries.
Examination disclosed cervical muscle spasm and tenderness of
the right shoulder. The diagnosis was cervical muscle spasm,
rule out disc disease. A VA neurologic consult found
cervical radiculopathy, and ordered electromyographic (EMG)
testing. EMG studies in December 1978 were negative, but it
was found that rotation and extension of the right arm caused
a right C6 nerve root irritation with paresthesias in the
thumb and index finger.
In November 1985, the veteran claimed service connection for
advanced degenerative arthritis of the neck and right
shoulder, manifested by pain and numbness, and caused by an
inservice accident. He submitted a copy of a January 1985
bone scan showing increased uptake throughout the larger
joints of the body, bilaterally, and in the area of the
coccyx, and in June 1985, he was diagnosed with bilateral
shoulder impingement syndrome, and carpal tunnel syndrome.
Electromyographic testing in October 1985 showed findings
inconsistent with left TOS [sic] or consistent with
radiculopathy. X-rays of the cervical spine in September
1985 disclosed far advanced degenerative arthritic changes of
the lower cervical spine with marked narrowing of the
intervertebral space of C5 and C6, and a very small cervical
rib. The examining orthopedist diagnosed possible left
thoracic outlet syndrome versus a C5-6 cervical disc.
A rating decision of December 1985 denied service connection
for degenerative joint disease of the cervical spine. The
veteran was notified of that determination, but failed to
initiate an appeal, and that decision became final after one
year.
In October 1990, the veteran again sought service connection
for a cervical spine disability, to include arthritis and
degenerative disc disease, by submitting additional medical
evidence. The additional evidence submitted included an X-
ray of the cervical spine in January 1988 showing
degenerative changes centered at C5-6 and, to a lesser
degree, at C6-7. The pertinent diagnosis was degenerative
disc disease, cervical spine, centered at the C5-6 level. In
February 1988, the veteran submitted service hospital
facility reports showing hypesthesia of the right arm, and
the assessment was rule out cervical disc. X-ray examination
of the cervical spine in April 1988 disclosed narrowing of
the C5-6 disc spaces; and mild to moderate degenerative
hypertrophic spurring anteriorly, most marked about the C5-6
area. In July 1988, the veteran was seen for complaints of
pain in the left side of the neck, radiating into the
shoulder, arm and hand, and treated occasionally at VA with a
nerve block. The assessment was degenerative joint disease
of the cervical spine. A report of VA general medical
examination, conducted in July 1988, disclosed neck pain on
rotation of the head to either side. The pertinent diagnosis
was residuals of fracture of T2 and T11.
A VA hospital summary dated in August 1988 shows that the
veteran underwent a CT scan of the cervical spine because of
his history of thoracic outlet syndrome. No report of that
CT scan of the cervical spine is available. Another VA
hospital summary, dated in October and November 1988, shows
that the veteran had a left C6-7 radiculopathy. EMG and
nerve conduction testing disclosed polyneuropathy, and a
cervical myelogram was performed. That procedure revealed
mild disc bulging at the C6-7 level, and nerve block
injections were given at trigger points.
Reports of VA orthopedic and neurologic examinations,
conducted in April 1989, cited the veteran's fracture of the
upper back in a 1958 [sic] motor vehicle accident, and his
ensuing chronic neck pain with shoulder, arm and hand pain,
treated with nerve blocks in the cervical spine, scapulae and
upper extremity joints. Limitation of lumbothoracic motion
was limited in all planes. The diagnoses included cervical
CT scan showing ventral defects at C4-C5, C5-C6, and C6-C7,
left lateral defects at C4-C5, C5-C6, and C6-C7C4-C5, and
right lateral defects at C6-C7.
A rating decision of September 1989 continued the 10 percent
rating for residuals of fracture of T2 and T11 with chronic
back pain, but granted service connection for polyneuropathy
of the upper and lower extremities, bilaterally, as secondary
to diabetes mellitus.
VA outpatient treatment records showed that in July 1990, the
veteran received nerve block injections of the trigger points
of the iliocostalis, splenius muscles, occipital, and triceps
and pectoris major for myofascial syndrome. In August 1990,
he received similar injections to the trigger points of the
rhomboid muscle, the flexor pollicis longus, and the
brachioradialis muscle.
A VA hospital summary, dated in August 1990, shows that the
veteran underwent an anterior cervical diskectomy with fusion
to relieve a severe cervical spondylolysis at the C5-6 level
producing chronic neck, left shoulder and arm pain.
Postoperatively, he began to experience pain in the right C6
distribution. EMG testing in August 1990 disclosed normal
findings with no evidence of radiculopathy, although it was
noted that signs of denervation might be delayed. The
diagnosis was C-6 osteophytes with radiculopathy, with
anterior cervical diskectomy at C5-6 with fusion.
An EMG and nerve conduction studies of the right arm in
September 1990 revealed findings indicative of a C6 and
possibly C7 radiculopathy on the right. In September 1990,
the veteran underwent a steroid ganglion block, right side,
for chronic arm pain secondary to myofascial syndrome of C6-7
cervical radiculopathy by EMG. An October 1990 letter from
the veteran's VA physician stated that he could not use his
right arm and could not work. A cervical myelogram in
October 1990 disclosed multiple-level foraminal stenosis,
causing recurrent right C6-7 radiculopathy. A post-myelogram
CT scan in October 1990 revealed posterior spur formation
from C3 and C, with no evidence of disc herniation, and
narrowing of the neuroforamina at C5-C6, bilaterally,
diagnosed as degenerative changes of the lower cervical spine
with foraminal narrowing but no evidence of disc herniation.
A VA hospital summary, dated in November1990, shows that the
veteran underwent a posterior bilateral cervical laminectomy
at C5-6, with foraminotomies on the right at C6-7, to relieve
pain and discomfort from C6 radiculopathy with degenerative
disc disease involving the cervical spine.
A rating decision of January 1991 denied a temporary total
rating based upon hospitalization and surgery on the grounds
that service connection was not in effect for the cervical
spine disability necessitating his surgery. An increased
rating for his service-connected residuals of fractures of T1
and T11 was also denied. The veteran appealed, seeking
service connection for his cervical disabilities and
requesting a personal hearing.
A personal hearing was held at the RO in August 1991 before
an RO Hearing Officer. It was agreed that the issue of
service connection for degenerative disc disease of the
cervical spine with cervical radiculopathy was in appellate
status, as well as the appeals for a rating in excess of 10
percent for residuals of fractures, T2 and T11, with chronic
back pain, for a rating in excess of 20 percent for diabetes
mellitus, and entitlement to Paragraph 30 benefits for
hospitalization and convalescence. The veteran called
attention to medical evidence showing damage to the cervical
spine, including C5, C6, and C7; testified that all such
disability is the result of injuries sustained in a 1959
motor vehicle accident in which he was thrown through the
windshield [sic] and onto the highway; that he subsequently
experienced various episodes of shooting pain in the neck,
feeling like a hot wire; that he underwent cervical traction
during service on several occasions due to cervical
symptomatology; and that his current degenerative disc
disease of the cervical spine with cervical radiculopathy is
due to his inservice cervical injury rather than to his
service-connected diabetes mellitus. A transcript of the
testimony is of record.
At his personal hearing, the veteran introduced into the
record a report of magnetic resonance imaging (MRI) of his
cervical spine, performed in August 1991. That report
disclosed postoperative changes of the cervical spine at the
C5-6 interspace with disc dehydration, and enhancement at the
juncture of the C5 and C6 vertebrae, consistent with minimal
scarring, but without extradural compression of the thecal
sac. Bone spurring was seen at the C3-4 level with an
extradural defect, greatest on the left. The impression was
bone spurring at the C3-4 level with an extradural defect,
greatest on the left, and postoperative changes at the C5 and
C6, with no evidence of current disc protrusion.
VA outpatient records dated from July 1988 to January 1991
show that the veteran was seen frequently for nerve blocks in
the neck, scapula, and the joints of the upper extremities.
Treatment records from Ireland Army Community Hospital, dated
from March 1989 to August 1991 show treatment of the veteran
predominantly for gastrointestinal complaints.
VA EMG testing in March 1991 was indicative of a right C7
radiculopathy, while a CT scan of the cervical spine in April
1991 showed degenerative disc disease with some sclerosis and
narrowing at C5-6; and a slight curvature of the cervical
spine, without gross disc disease at C4-5 or C7-T1. The
radiographic impression was degenerative disc disease at C5-
6, manifesting some narrowing and sclerosis; and a slight
spasm of the cervical spine attributed to muscle spasm or
positional factors. An entry in April 1991 showed that the
veteran had a right C7 radiculopathy, and a May 1991 entry
showed neck pain on movement and a diagnosis of [cervical]
disc disease at C5-6. In June 1991, the impression was right
radicular pain, C5-C6.
A Hearing Officer's decision in October 1991 granted an
increased rating of 40 percent for diabetes mellitus, while
denying a rating in excess of 10 percent for residuals of
fracture of T2 and T11, with back pain. A rating decision of
November 1991 noted, in pertinent part, that a rating
decision of December 1985 denied service connection for a
cervical spine disability, to include arthritis, because the
service medical records were silent for complaint, treatment,
or diagnosis of a cervical spine condition or evidence of
cervical arthritis within one year of service separation. In
addition, it was noted that the veteran was informed of that
adverse determination, but failed to initiate an appeal, and
that decision became final. Finally, it was found that the
evidence submitted since the final rating decision of
December 1985 was not new or material to the issue of service
incurrence of a cervical disability, including arthritis.
The veteran was notified of the action taken by a
Supplemental Statement of the Case.
A rating decision of November 1991 determined that new and
material evidence had not been submitted to reopen the claim
for service connection for a cervical spine disability, to
include degenerative arthritis, and denied service connection
for degenerative disc disease. The veteran was notified of
that adverse determination, but failed to initiate an appeal,
and that decision became final after one year.
In August 1999, the veteran undertook to reopen his claim for
service connection for a cervical spine disability, to
include arthritis and degenerative disc disease, by
submitting additional medical evidence and sworn testimony.
The additional evidence submitted included VA outpatient
records, dated in September 1991, showing that he was seen
for neck pain and dysthesias of the arms, bilaterally. It
was noted that an August 1991 MRI showed bone spurring at C3-
4, bilaterally, and postoperative changes at C5-6. In a
medical history submitted in connection with a February 1992
VA medical examination, the veteran stated that he injured
his neck in 1959; that he has experienced neck pain at times
since that injury; and that he has experienced additional
physical disability since his C5 surgery in August and
October 1990.
In addition to VA examination in March 1992, the examiner
reviewed medical records which included a June 1990 CT scan
of the cervical and dorsal spine. That report showed that
the overall size of the spinal canal was adequate, although
some bony exostosis of the vertebral body was noted together
with narrowing of the foramina at the C3-4 level on the left
and the C5-6 level on the right. The diagnosis was
hypertrophic spurring with some foraminal narrowing at the
C3-4 level on the left and the C5-6 level on the right.
A report of VA examination of the cervical spine, conducted
in March 1992, disclosed a full range of cervical motion,
with pain on any motion requiring injections and a topical
anesthetic. The diagnosis was status post diskectomy, C5,
with hypertrophic spurring and foraminal narrowing at C5-6 in
the foramina on the right and at C3-4 in the foramina on the
left. The neurological examination cited complaints of
painful radiculopathy after a right diskectomy, requiring
nerve blocks in the neck, shoulders and elbows, and findings
of trigger points, bilaterally, at the trapezius. There was
some decrease in sensation in the thumb and forefinger of the
right hand. The diagnosis was cervical radiculopathy.
In September 1992, the veteran was seen at a VA medical
facility on several occasions for nerve blocks due to
cervical degenerative joint disease and stenosis. In
February 1993, the diagnosis was degenerative disc disease of
the cervical spine. An X-ray in March 1994 disclosed
degenerative changes in the thoracic spine.
Private treatment records from Hardin County Memorial
Hospital in February 1994, and from Hardin County Health
Center from February to June 1994 show no treatment of the
veteran for the disability at issue.
An April 1994 letter from a VA physician stated that he saw
no reason for the veteran to have arm pain, and that he was
unable to determine whether that would keep him from working
until he was evaluated by a pulmonologist or a neurosurgeon.
In May 1994, the veteran submitted an application for a total
disability rating based on unemployability due to service-
connected disabilities (VA Form 21-8940). In June 1994, the
veteran's lumbar disability was reviewed by a professional
health care provider, who indicated that he would not be able
to hold down any gainful employment.
Treatment records from Ireland Army Community Hospital, dated
from May to July 1994, show that the veteran was seen for
complaints that included a chronic cervical spine pain,
diagnosed as cervical arthritis. An August 1994 whole-body
bone scan revealed diffuse increased localization throughout
the T10 vertebral body, described as probably the result of
an old compression and degenerative changes.
An August 1994 letter from a VA physician cited an MRI scan
of the cervical spine, noting a segmentation abnormality or
an anterior interbody fusion at the C5-6 level; moderate to
marked anteroposterior spinal stenosis extending from the C3-
4 level to the C4-5 level; anteroposterior spinal stenosis at
the C4-5 level with a right-sided disc herniation with
possible right lateral cord effacement; and moderate to
marked anteroposterior spinal stenosis of the dural sac and
spinal canal at C3-4, with what appears to be medial left-
sided stenosis. The clinical impression was moderate to
severe anteroposterior spinal stenosis extending from C3-4 to
C4-5; an apparent anterior interbody fusion at C5-6; a
moderate sized lateral disc herniation at the C4-5 level; and
medial stenosis of the left-sided foramina at the C3-4 level.
In September 1994, the veteran's diagnoses were cervical
stenosis and cervical discs.
A report of VA orthopedic examination, conducted in October
1994, cited the veteran's history of fracture of T2 and T11,
with a history of chronic back pain of the thoracic spine
aggravated by lifting or moving his neck and relieved by
medication or intramuscular injections. A healed surgical
scar was noted, with no tenderness or discoloration, and a
full range of cervical motion was present with pain on all
motions. There was no thoracic range of motion independent
of the lumbar spine. The diagnoses were status post fracture
T2 and T11, with traumatic arthritis of the thoracic spine.
The orthopedic examiner stated that if the veteran's
degenerative joint disease is service-connected for the neck
and lumbar spine, then he was unemployable due to service-
connected causes. X-rays of the thoracic spine revealed a
decrease in height of the mid- to lower thoracic vertebral
bodies, possibly representing old compression fractures, with
anterior osteophytes throughout; and somewhat irregular end-
plates likely the sequelae of Scheuermann's disease.
A report of VA neurological examination, conducted in October
1994, showed that the veteran's biceps,, triceps, supinators,
knee and ankle jerks were absent or barely elicitable,
bilaterally; Romberg was positive; he could not perform heel-
and-toe walking; and a sensory loss was found, either
radicular in nature or of a peripheral neuropathy type of
sensory loss. The diagnoses were degenerative joint disease
of the cervical and lumbar spine with radiculopathy,
predominantly sensory, with no demonstrated motor weakness;
and MRI evidence of cervical spine stenosis. An October 1994
report of EMG and nerve conduction velocity studies to
resolve conflicting diagnoses of [cervical] radiculopathy
versus peripheral neuropathy revealed a moderate chronic C6
radiculopathy of the bilateral upper limbs; a moderate
chronic C7 radiculopathy of the right upper limb; and a mild
superimposed demyelination condition of the bilateral upper
limb motor nerves and a slight decrease in sensory nerve
amplitudes, suggestive of peripheral neuropathy.
The October 1994 report of VA orthopedic examination was
returned to the medical facility as inadequate due to the
absence of a nexus opinion.
A January 1995 VA orthopedic examination report stated that
the veteran was involved in a motor vehicle accident many
years ago in which he sustained fractures of the T2 and T11
vertebrae; that he underwent cervical diskectomy in August
1990 and a cervical diskectomy and fusion in November 1990;
and that a CT scan was consistent with severe degenerative
joint disease of the cervical spine. The examiner stated
that he did not see evidence of a herniated disc, but much
foraminal stenosis, facet hypertrophy, and degenerative joint
disease. The diagnoses included quite severe cervical
spondylolysis and lumbar disc disease.
A VA diagnostic radiology report, dated in January 1995,
shows that a lumbar and cervical myelogram with contrast and
CT scan was performed. That procedure revealed a prior
surgical fusion of the C5-6 vertebral bodies, with narrowing
of the C3-4 neuroforamen on the right secondary to
uncovertebral and facet joint osteophytosis. At the C4-5
neuroforamen, there was narrowing at the mid-portion from
uncovertebral and facet joint osteophytosis. There was
moderately advanced degenerative disc changes with joint
space narrowing at the C2-3 and C3-4 spaces. A mild
indentation was seen upon the thecal sac, anteriorly, by
posterior end-plate spurring at the C2-3, C3-4, and C4-5
intervertebral disc spaces. CT scans revealed degenerative
osteoarthrosis with deformity of the anterior aspects of the
cervical vertebral bodies, particularly at the C4-5, C5-6,
and C6-7 posterior margins of the vertebral body end-plates.
At the C4-5 intervertebral disc space, there was mild bulging
of the IV disc with minimal indentation upon the anterior
thecal sac, but sparing the neuroforamena and associated
nerve roots, while at the C5-6 level, there was moderate
impingement upon the thecal sac centrally and eccentrically
to the left as well as laterally in the right neuroforamen
with the narrowing due to severe bony spurring, together with
impingement of the left neuroforamen centrally at the C5-6
level. Minimal impingement was seen upon the anterior thecal
sac at the C6 and C6-7 region.
The diagnoses were: degenerative bony spurring of the
posterior vertebral body end-plates, C5-6, with moderate
impingement of the thecal sac and neuroforamenae; and
degenerative osteoarthritis and degenerative changes
diffusely throughout the cervical spine with minimal thecal
impingement at the C3-4 and the C6-7 levels.
The VA diagnostic radiology report, dated in January 1995,
was returned as inadequate, and a report of pre-myelogram
imaging of the cervical spine was obtained. That report
disclosed apparent fusion of C5-6, possibly post-surgical,
with deformity of the neuroforamena at multiple levels. In
addition, there was straightening of the normal curvature,
suggestive of muscle spasm, and diffuse spondylosis with
associated disc space narrowing, most pronounced at C3-4 and
C5-6, with incomplete imaging at C7. The cervical diagnosis
was muscle spasm and degenerative changes, as described; and
evidence of fusion, probably postoperative.
A rating decision of May 1995 granted, among other things, a
total rating based on individual unemployability due to
service-connected disabilities, effective in March 1994,
together with basic entitlement to Educational Assistance
benefits under 38 U.S.C.A., Chapter 35 (West 1991).
The VA orthopedic examination report, dated in January 1995,
was returned as inadequate due to the absence of a nexus
opinion. A report of VA orthopedic examination, conducted in
July 1995, cited a history of the veteran's neck and lumbar
spine injuries that omitted any reference to his 1959
fracture of the T2 vertebrae. Findings on examination of the
cervical spine were noted, together with the reports of X-
rays and imaging studies in January 1995. A clinical
impression was offered, without a nexus opinion.
The previous VA orthopedic examinations and diagnostic
imaging reports were returned as inadequate. However, the RO
failed to include the veteran's service medical records, and
no useful opinions were obtained regarding the veteran's
cervical spine disability.
A report of VA orthopedic examination, conducted in July
1998, cited the veteran's history of anterior neck surgeries
and fusions in 1990, and his current complaints of neck pain,
radiating into the shoulders, bilaterally, and neck weakness,
stiffness, and fatigability, requiring aspirin but not the
use of a neck brace. Strength was normal in the upper and
lower extremities and cervical spine. A moderate limitation
of cervical and lumbar motion was present in all planes, with
pain on the extremes of motion. The findings on examination
were reported in detail. Additional X-ray and MRI studies of
the cervical, thoracic, and lumbar spines were obtained. The
diagnoses included cervical neuropathy, cervical degenerative
arthritis with neuroforaminal narrowing and cervical canal
stenosis.
The veteran submitted a report of orthopedic examination, X-
rays, and MRI studies of the cervical spine, conducted at
Ireland Army Community Hospital in July 1999, which disclosed
degenerative changes of the upper cervical spine with a
fusion and some flexion at C5-6, with a small C7 cervical
rib, and no evidence of subluxation or dislocation. MRI
revealed findings suggestive of central spinal canal
stenosis, worse at C3-C4 and C4-C5, as well as findings
suggestive of a small syrinx, with a differential of lower
cervical spinal tumor. The report further noted a slight
progression of degenerative disease, including posterior
osteophytosis at the C3/4 level, causing mild worsening of
the cervical spinal canal stenosis at that level.
Degenerative disease at the C4/5 level appeared unchanged.
The additional medical evidence from Ireland Army Community
Hospital, dated in July 1999, was construed as an intention
to reopen the previously denied claim for degenerative
disease of the cervical spine. A rating decision of November
1999 determined that new and material evidence had not been
submitted to reopen a claim of service connection for
degenerative disease of the cervical spine. The veteran was
notified of that determination; that new and material
evidence was required to reopen that claim; the meaning of
the terms "new" and "material"; and of his right to
appeal.
The veteran then submitted additional medical evidence from
Ireland Army Community Hospital from May through September
1999, including X-rays in May 1999 showing diffuse
degenerative osteoarthritis of the cervical spine, with a
component of osteoporosis; narrowing of the C5-C6 interspace
with evidence of a bone graft; and indications of
degenerative disc changes at the C5-C6 interspace. An
October 1999 report from Jonathan E. Hodes, MD, status post
cervical fusion, anterior and posterior, C5-6. Medical
records from Hardin Memorial Hospital, dated from April 1999
to March 2000, did not address his cervical disability. A
July 1990 VA hospital summary diagnosed a C6-C6 osteophyte
bar with C6 radiculopathy, while a VA hospital summary dated
in January 1995 diagnosed cervical and lumbar radiculopathy.
The veteran submitted a written statement in April 2000
addressing the history of his cervical injury, arthritis, and
degenerative disc disease and citing his service medical
records.
A personal hearing was held in October 2000 before the
undersigned Veterans Law Judge sitting at Washington, DC.
The veteran testified as to his initial cervical and left
wrist injury in a 1959 motor vehicle accident, and his
subsequent discharge from the Marine Corps as a consequence
of those injuries. He also described a subsequent cervical
injury, requiring cervical traction, while at Fort Hood,
Texas, in approximately 1965 or 1966, as well as injuries
sustained in a train accident at Fort Knox, requiring that he
appear before a Medical Board and a change in his military
occupational specialty. He testified that he had arthritis
of the neck during service and shortly after service. The
veteran's spouse testified that she married the veteran in
1964; that he experienced neck pain at the time of their
marriage and thereafter; that she had witnessed his reaction
to neck pain; and that she had gone to see him while he was
hospitalized at Fort Hood for treatment of his cervical
disability. A transcript of the testimony is of record.
Following the testimony, the veteran submitted a December
1966 letter written while he was hospitalized at Fort Hood
for cervical problems, and a waiver of initial RO review of
that letter.
The Board must now determine whether the additional evidence
submitted since the rating decision of November 1991 denying
service connection for a cervical spine disability, to
include degenerative arthritis and degenerative disc disease,
is both new and material evidence to those issues.
II. Analysis
A rating decision of December 1985 denied service connection
for a cervical spine disability, to include arthritis. The
veteran was notified of that determination, but failed to
initiate an appeal and that decision became final after one
year. In October 1990, the veteran again sought service
connection for a cervical spine disability, to include
degenerative arthritis and degenerative disc disease, by
submitting additional medical evidence. A rating decision of
November 1991 determined that new and material evidence had
not been submitted to reopen the claim for service connection
for a cervical spine disability, to include degenerative
arthritis and degenerative disc disease. The veteran was
notified of that adverse determination, but failed to
initiate an appeal and that decision became final after one
year.
In August 1999, the veteran undertook to reopen his claim for
service connection for a cervical spine disability, to
include degenerative arthritis and degenerative disc disease,
by submitting additional medical evidence and testimony.
In determining whether new and material evidence has been
submitted which is sufficient to warrant reopening of a claim
under the provisions of 38 U.S.C.A. § 5108 (West 1991),
consideration must be given to all of the evidence submitted
since the last final disallowance of the claim. Evans v.
Brown, 9 Vet. App. 273, 285 (1996). However, in the recent
decision in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998),
the Federal Court expressly rejected the standard for
determining whether new and material evidence had been
submitted, as set forth in Colvin v. Derwinski, 1 Vet. App.
171 (1991), and held that the regulatory standard set forth
in 38 C.F.R. § 3.156(a) (2000) was the only correct
standard.
The cited regulation provides that:
New and material evidence means evidence
which bears directly and substantially
upon the specific matter under
consideration, which is neither
cumulative nor redundant, and which by
itself or in connection with evidence
previously assembled is so significant
that it must be considered in order to
fairly decide the merits of the claim.
38 C.F.R. § 3.156(a) (2000).
Finally, for the purpose of determining whether a case should
be reopened, the credibility of the evidence added to the
record is to be presumed unless the evidence is inherently
incredible or beyond the competence of the witness. Justus
v. Principi, 3 Vet. App. 510, 513 (1992).
The evidence of record at the time of the November 1991
rating decision denying service connection for a cervical
spine disability, to include degenerative arthritis and
degenerative disc disease, includes service medical records
showing that the veteran was diagnosed with torticollis
during active service in December 1966 and January 1967, and
placed in cervical traction in April 1971; that X-rays of his
cervical spine in June 1976 revealed joint space narrowing at
C5-C6, with neural foraminal narrowing; that an
osteoarthritis flare-up was diagnosed in August 1976; and
that he was diagnosed with cervical arthritis on orthopedic
consultation at the time of his service retirement
examination. Thereafter, VA outpatient records dated in
October 1978 noted symptoms in the veteran suggestive of a
right C6 cervical radiculopathy, and electromyographic (EMG)
testing was recommended. In November 1978, the veteran
complained of pain in the right side of his neck, pain in the
right shoulder and arm, and numbness, and a history of back
and neck injuries. Examination disclosed cervical muscle
spasm and tenderness of the right shoulder. The diagnosis
was cervical muscle spasm, rule out disc disease. A VA
neurologic consult found cervical radiculopathy, and ordered
electromyographic (EMG) testing. EMG studies in December
1978 were negative, but it was found that rotation and
extension of the right arm caused a right C6 nerve root
irritation with paresthesias in the thumb and index finger.
The medical evidence of record at the time of the November
1991 rating decision denying service connection for a
cervical spine disability, to include degenerative arthritis
and degenerative disc disease, included demonstration and
diagnosis of both those conditions.
The additional evidence submitted in order to reopen the
veteran's claim for service connection for a cervical spine
disability, to include degenerative arthritis and
degenerative disc disease, includes testimony and medical
evidence establishing continuity of treatment for the
veteran's cervical arthritis and radiographic findings of
joint space narrowing, C5-C6, with neural foraminal
narrowing, initially demonstrated and diagnosed during active
service. In addition, the veteran and his spouse have
offered credible testimony as to the inservice onset and
severity of his cervical disabilities, and that testimony
establishes continuity of treatment for the claimed cervical
disability since his inservice hospitalization at Fort Hood
in December 1966.
The Board finds that the additional evidence submitted to
reopen the claim for service connection for a cervical spine
disability, to include degenerative arthritis and
degenerative disc disease, includes evidence which bears
directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself or in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. Accordingly,
the Board finds that the claim for service connection for a
cervical spine disability, to include degenerative arthritis
and degenerative disc disease, has been reopened, and that de
novo review is warranted.
The United States of Appeals for Veterans Claims (Court)
recently announced a new three-step analysis that VA must
perform when a veteran seeks to reopen a final decision based
on the submission of new evidence. See Elkins v. West, 12
Vet. App. 209 (1999) (en banc). The three prongs of the new
Elkins test are as follows: (1) VA must first determine
whether the veteran has presented new and material evidence
under 38 C.F.R. § 3.156(a) (2000) in order to have a finally
denied claim reopened under 38 U.S.C.A. § 5108; (2) if new
and material evidence has been presented, immediately upon
reopening the claim, VA must decide whether, based upon all
the evidence of record in support of the claim, presuming its
credibility, the reopened claim is well grounded pursuant to
38 U.S.C.A. § 5107(a); and (3) if the claim is well grounded,
VA may then proceed to evaluate the merits of the claim but
only after ensuring that the duty to assist under
38 U.S.C.A. § 5107(a) has been fulfilled. Elkins, id. If
the additional evidence presented is not new, the inquiry
ends and the claim may not be reopened. Smith (Russell) v.
West, 12 Vet. App. 312 (1999).
However, on November 9, 2000, the President signed into law
H.R. 8464, Veterans' Claims Assistance Act for 2000, (Nov. 9,
2000; 114 Stat. 2096), designated as Public Law No. 106-475.
That Public Law rewrites 38 U.S.C. § 5107 (to be codified as
amended at 38 U.S.C. § 5107) to eliminate the concept of a
well-grounded claim, and redefines VA's duty to assist,
including the provision of a medical examination, unless "no
reasonable possibility exists that such assistance will aid
in the establishment of entitlement." This law is effective
as of November 9, 2000, and must be applied to all pending
appeals. This legislative change has the effect of voiding
the requirement of item (2), above, stating that if new and
material evidence has been presented, immediately upon
reopening the claim, VA must decide whether, based upon all
the evidence of record in support of the claim, presuming its
credibility, the reopened claim is well grounded pursuant to
38 U.S.C.A. § 5107(a). Elkins, id.
Currently, if the claim is reopened by the submission of new
and material evidence, VA may then proceed to evaluate the
merits of the claim but only after ensuring that the duty to
assist under 38 U.S.C.A. § 5107(a) has been fulfilled. See
item 3, Elkins, id. However, under Public Law No. 106-475,
new duty to assist provisions became effective November 20,
2000 under new 38 U.S.C.A. § 5103A, which sets forth four
different aspects of the duty to assist, including the
general duty to assist; assistance in obtaining records,
assistance in obtaining records for compensation claims; and
medical examinations and opinions for compensation claims.
38 U.S.C.A. § 5103Aa-d (to be recodified at 38 U.S.C.A.
§ 5103A. The Board finds that the RO has fully met its duty
to assist the veteran under both the old and the new
provisions imposing upon VA a duty to assist the claimant.
Based upon a de novo review of the entire record in this
case, the Board concludes that the evidence permits only one
conclusion: that the veteran's current cervical spine
disability, including degenerative arthritis and degenerative
disc disease, was incurred during active service.
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303,
Part 4, § 4.3 (2000). In reaching it's conclusion, the Board
relies particularly upon service medical records showing that
the veteran was diagnosed with torticollis during active
service in December 1966 and January 1967, and placed in
cervical traction in April 1971; that X-rays of the cervical
spine in June 1976 revealed joint space narrowing at C5-C6,
with neural foraminal narrowing; that an osteoarthritis
flare-up was diagnosed in August 1976; and that he was
diagnosed with cervical arthritis on orthopedic consultation
at the time of his service retirement examination.
Further, the additional evidence submitted to reopen the
claim for service connection for a cervical spine disability,
to include degenerative arthritis and degenerative disc
disease, includes testimony and medical evidence establishing
continuity of treatment for the veteran's cervical arthritis
and radiographic findings of joint space narrowing, C5-C6,
with neural foraminal narrowing, initially demonstrated and
diagnosed during active service. That constitutes evidence
which bears directly and substantially upon the specific
matter under consideration, which is neither cumulative nor
redundant, and which by itself or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2000).
The claim for service connection for a cervical spine
disability, including degenerative arthritis and degenerative
disc disease, is granted.
ORDER
New and material evidence having been submitted, the claim
for service connection for a cervical disability, including
degenerative arthritis and degenerative disc disease, is
reopened.
Service connection for a cervical disability, including
degenerative arthritis and degenerative disc disease, is
granted.
REMAND
In June 1998, the veteran filed a Veteran's Application in
Acquiring Specially Adapted Housing or Special Home
Adaptation Grant (VA Form 26-4555) under the provisions of
38 U.S.C.A. §§ 801(a) and 801(b) (West 1991), and VA
examinations were scheduled.
A report of VA psychiatric examination, conducted in July
1998, provided diagnoses of depression and post-traumatic
stress disorder, and his Global Assessment of Functioning
(GAF) Score was 40, indicative of some impairment of reality
testing or communication or major impairment in several
areas, such as work or school, family relations, judgment,
thinking, or mood.
A report of respiratory examination, conducted in July 1998,
disclosed diagnoses of chronic obstructive respiratory
disease and cigarette abuse. Findings on respiratory
examination were reported in detail. Pulmonary function
studies disclosed FEV-1 of 1.63, 1.68 after bronchodilators;
and FEV-1/FVC of 77, 74 after bronchodilators. The diagnosis
was moderate restrictive ventilatory defect; with no
appreciable improvement after the use of bronchodilators.
A report of VA examination for diabetes mellitus, conducted
in July 1998, cited the veteran's history of that disease,
and the current findings on examination. He was found to
have insulin-dependent diabetes, diabetic neuropathy of the
upper extremities, diabetic neuropathy of the lower
extremities, and impotency secondary to diabetes, with
manifestations which included numbness of the hands and feet,
and he is treated with oral insulin twice daily, maintains a
restricted diet, and sees a diabetic care provider every one
or two months. He reported no hypoglycemic reactions, no
episodes of ketoacidosis, no material weight loss, no
vascular or cardiac symptoms, no anal pruritus or loss of
strength, and no restriction of activities secondary to
diabetes. Examination of the lower extremities disclosed a
slight decrease to sharp and to light touch over the hands,
bilaterally; a slight paresthesias to touch over the right
mid-foot; a decrease to sharp and light touch over the lower
legs, bilaterally; and a stasis ulcer at the bottom of the
right great metatarsophalangeal joint. A report of VA
genitourinary examination, conducted in July 1998, disclosed
that the veteran was impotent secondary to VA surgery, with
loss of erectile power.
A report of VA orthopedic examination, conducted in July
1998, cited the veteran's history of anterior neck surgeries
and fusions in 1990, and his current complaints of neck pain,
radiating into the shoulders, bilaterally, and neck weakness,
stiffness, and fatigability, requiring aspirin but not the
use of a neck brace. He further complained of daily low back
pain, with intermittent radiation into the buttocks and lower
extremities, as well as weakness and fatigability, requiring
the use of a back brace but not a cane or crutches. He
walked around the office without objective evidence of pain,
did a deep knee bend without difficulty, and ambulated on his
own, without assistance. Strength was normal in the upper
and lower extremities and cervical spine. A moderate
limitation of cervical and lumbar motion was present in all
planes, with pain on the extremes of motion. The findings on
examination were reported in detail. Additional X-ray and
MRI studies of the cervical, thoracic, and lumbar spines were
obtained. The diagnoses were cervical neuropathy, cervical
degenerative arthritis with neuroforaminal narrowing and
cervical canal stenosis; thoracic disc protrusion without
deformity of the adjacent thoracic cord; grade I
spondylolisthesis of L5 on S1 secondary to bilateral pars
defect with pseudo disc formation and moderate left and
severe right foraminal impingement.
A rating decision of November 1998 increased the evaluations
for the veteran's service-connected diabetic neuropathy of
the right and left lower extremities from 10 percent to 20
percent each; continued the noncompensable evaluation for
impotency; continued the 10 percent evaluations assigned for
COPD with asthma, an anxiety reaction, residuals of T2 and
T11 fractures with chronic low back pain, and bilateral
kidney stones; continued the 20 percent ratings for diabetic
neuropathy of the right and left upper extremities, and for
spondylolysis of the lumbar spine disabling; continued the 40
percent rating for diabetes mellitus; and denied entitlement
to specially adapted housing and a special home adaptation
grant. Special monthly compensation under 38 U.S.C.A.
§ 1114, subsection (k) and 38 C.F.R. § 3.350 for loss of a
creative organ was continued. A rating as to service
connection for visual impairment secondary to diabetes
mellitus was deferred. That decision did not address the
veteran's service-connected left wrist scar, left knee
disability, scar of scalp, chest and abdomen, residuals of
polypectomy, residuals of pilonidal cyst, or reflex
sympathetic dystrophy of the right hand, all rated as
noncompensably disabling. His combined service-connected
disability rating was 90 percent from January 1992, and he
was entitled to a total disability rating based on
unemployability from March 1994.
The veteran appealed the denial of his claim of entitlement
to specially adapted housing and a special home adaptation
grant, citing the bases for his belief that he was entitled
to that benefit, including his inability to walk more than
100 feet without pain and his current requirement for a
wheelchair and a motorized electric cart for trips away from
his residence. A Statement of the Case was issued addressing
the ratings assigned for his diabetic neuropathy of the upper
and lower extremities, bilaterally; for his residuals of
fractures at T2 and T11 with chronic low back pain; his
spondylolysis of the lumbar spine, and his bilateral kidney
stones; and the denial of entitlement to specially adapted
housing and a special home adaptation grant. However, in his
Substantive Appeal (VA Form 9), the veteran addressed only
the issue of entitlement to specially adapted housing and a
special home adaptation grant, and the other issues were
considered abandoned.
Following the receipt of additional private, VA, and service
hospital medical evidence, the veteran testified at a March
1999 personal hearing before an RO Hearing Officer.
Thereafter, a rating decision of July 1999 denied service
connection for visual impairment secondary to diabetes
mellitus; increased the evaluation for the veteran's service-
connected bilateral kidney stones from 10 percent to 20
percent disabling, continued the noncompensable rating for
residuals of a pilonidal cyst; continued the 10 percent
rating for residuals of fracture at T2 and T11 with chronic
low back pain; and continued to 40 percent rating for
diabetes mellitus. His combined service-connected disability
rate was continued at 90 percent.
A Supplemental Statement of the Case was issued in July 1999
addressing the issue of entitlement to specially adapted
housing or a special home adaptation grant.
At his personal hearing held before the undersigned Member of
the Board, the veteran offered testimony with respect to his
claim for entitlement to specially adapted housing and a
special home adaptation grant. He testified that he lived in
a two bedroom house which is about 50 years old; that VA has
already provided a wheelchair ramp, a larger front door, and
a larger bathroom with toilet; that VA had issued him a
wheelchair and a motorized electric cart; that his house is
not large enough, having approximately 700 square feet; that
his closets are not big enough; that he cannot adequately
maneuver his wheelchair because stuff is piled in boxes; that
he cannot open his wheelchair in the bedroom; that VA should
build an addition to his house; and that it is very crowded
and difficult when they have visitors. He testified that VA
should lower everything in his kitchen to make it wheelchair
accessible; that an outdoor shelter for his motorized
electric cart is needed; and that wider interior doorways and
doors should be installed, as well as larger doors leading to
the outside.
The evidence in this case shows that the issue of entitlement
to specially adapted housing or a special home adaptation
grant was addressed by the RO, rather than the VA Medical
Center. Further, while the RO has denied entitlement to
entitlement to specially adapted housing or a special home
adaptation grant, the evidence in this case shows that all or
a portion of the requested benefits have already been granted
the veteran by the VAMC, and that the RO has failed to obtain
the records establishing the veteran's prior receipt of all
or a portion of the benefits in question. The Board notes,
in particular, that the record includes evidence that VA has
provided the veteran a wheelchair and a motorized electric
cart, and has made certain specific improvements to his home,
including a wheelchair ramp, an enlarged entry door, and a
larger bathroom to admit his wheelchair. The Board finds
that the current record is inadequate to establish the
current status with respect to the veteran's receipt of
specially adapted housing or a special home adaptation grant.
Accordingly, Remand is warranted to investigate and determine
the actual status of the veteran's residence in the areas of
alleged deficiency, and for a report as to the veteran's
entitlement to the additional benefits sought a review of the
transcripts of his testimony and interviews with the veteran.
Thereafter, a complete report must be provided and associated
with the claims folder, and a Supplemental Statement of the
Case provided.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999); Quarles v. Derwinski, 3 Vet. App. 129 (1992).
The Court has held that a remand by the Court or the Board
confers on the veteran or other claimant, as a matter of law,
the right to compliance with the remand orders. The Court
further held that a remand by the Court or the Board imposes
upon the Secretary of Veterans' Affairs a concomitant duty to
ensure compliance with the terms of the remand, either
personally or as [] "the head of the Department."
38 U.S.C.A. § 303 (West 1991). Further, the Court stated
that where the remand orders of the Board are not complied
with, the Board itself errs in failing to ensure compliance.
Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the
RO must review all examination reports prior to returning the
case to the Board in order to ensure full and specific
compliance with all instructions contained in remands by this
Board. All cases returned to the Board which do not comply
with the instructions of the Board remand will be returned to
the RO for further appropriate action as directed.
The case is Remanded for the following actions:
1. The RO should obtain from the VAMC,
Louisville, Kentucky, or any other
indicated VA medical facility, the
complete medical or administrative
records pertaining to VA's provision of a
wheelchair and motorized electric cart to
the veteran, as well as all medical or
administrative records which pertain to
the provision by VA of improvements to
his home, including a wheelchair ramp, a
larger front door, and a larger bathroom
with toilet, as well as any other
improvements to his home required by his
disability and provided by VA.
2. Upon receipt of the requested
information, the RO should review all
such information, including any private
or VA medical reports or certificates
addressing the veteran's need for such
wheelchair and motorized electric cart,
as well as his need for the a wheelchair
ramp, a larger front door, a larger
bathroom with toilet, and other
improvements to his home required by his
disability and provided by VA. The RO
should investigate and determine the
actual status of the veteran's residence
in the areas of alleged deficiency,
obtain a report as to the veteran's
entitlement to the additional benefits
sought on appeal, and review those
documents together with the transcripts
of his testimony and interviews with the
veteran.
3. The RO should then provide copies of
all documentation obtained to the VAMC
Medical Administrative Officer with a
request that a determination be made by a
qualified physician or physicians at that
facility with respect to the veteran's
need for specially adapted housing or a
special home adaptation grant, either on
an original basis or in addition to those
benefits already provided.
4. The RO should then readjudicate the
issue of the veteran's entitlement to
specially adapted housing or a special
home adaptation grant, in light of the
additional evidence obtained.
If the benefits sought on appeal are not granted to the
veteran's satisfaction or if a timely Notice of Disagreement
is received with respect to any other matter, the RO should
issue a Supplemental Statement of the Case, including all
applicable law and regulations, and the appellant and his
representative should be provided an opportunity to respond.
The appellant should be advised of the requirements to
initiate and perfect an appeal on any issue addressed in the
Supplemental Statement of the Case which is not currently on
appeal. The case should then be returned to the Board for
further appellate consideration, if otherwise in order. The
Board intimates no opinion, either legal or factual, as to
the ultimate disposition of these claims.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
F. JUDGE FLOWERS
Member, Board of Veterans' Appeals